Some Antacid for Old Cajun Home Cooking?

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            We are notsure why we have heard so much cheesy music from the 1970s recently.  (It is a musical mystery, like why Geniusdetermined that Billy Joel’s “Lullabye” belongs in its Nü-Metal Mix.)  Wedo not think that Foreigner was talking about writing a blog post in “Feels LikeThe First Time,” but we were reminded of our first post the other day, a littleditty called “Cajun Home Cooking?” http://druganddevicelaw.blogspot.com/2012/09/cajun-home-cooking.html That post ended with “We also hope thatthe next court to take a look at Caldwell will pay better attention to the lawand evidence used to punish the defendant here – although none of the $330million tally was for ‘punitive damages’ if you believe the labels.”  Well, we will get to see how the LouisianaSupreme Court does now that it has granted a writ.  Caldwellex rel. State v. Janssen Pharm., 2013 La. LEXIS 205 & 207 (La. Jan. 18,2013).  We are sure that the Appellantswill identify many reasons to reverse the decision of the Court of Appeals,which upheld $330 million in penalties, attorney fees, and costs for “35,542violations for misrepresentations about the safety of a drug without everhaving to prove ­any actualdamages were sustained by the state’s medical assistance programs.”  (Yes, we did just quote ourselves.)  We are sure they will point out how dicey itwas for the Court of Appeals to apply an abuse of discretion standard to upholdthe trial court’s reliance (for its interpretation of the Louisiana MedicalAssistance Programs Integrity Law) on a consumer fraud decision by a WestVirginia trial court that had not been good law in West Virginia since 2010.  Without repeating the sordid details ofdecisions by the first two Louisiana courts on this case, http://druganddevicelaw.blogspot.com/2012/12/the-bottom-ten-worst-prescription.html,we will say that we hope the fundamental flaw of permitting huge recoverieswithout proof of injury will be reexamined, much like it was by appellatecourts that reversed the unfortunate trend of permitting medical monitoring forclasses of people without present compensable injuries.  http://druganddevicelaw.blogspot.com/search/label/Medical%20Monitoring
            Therecertainly are other states pursuing dubious quasi-criminal actions against drugmanufacturers, often through the same group of Texas plaintiff lawyers as in Caldwell.  We saw the recent decision of the judge inPulaski County, Arkansas, allowing $177 million in fees for outside lawyers whosecured a $1.2 billion verdict over violations of the Arkansas Medicaid fraudlaw and consumer fraud law in connection with marketing of Risperdal.  (To show we were not just dumping onLouisiana, we note that Arkansas has seen its own debt balloon since this casewas filed—up to $25 billion per the Arkansas budget office.)  If you visit the site of the Arkansasattorney general’s office, which initiated and outsourced the prosecution ofthis case, you can see various press releases of settlements with otherpharmaceutical companies over various “marketing” issues, with each releasespecifying the amount that will go to the state coffers.  In one such notice, the Arkansas AG wasquoted as saying “Any time drug companies mislead the public, our office willwork to ensure the companies are held responsible for their wrongdoing . . .  It is my hope that this result sends a strongmessage to any company about the importance of providing Arkansas physiciansand consumers with accurate information about its products.”  In none did we see a reference to outsourcingthe work of the office to private plaintiff lawyers in exchange for the hope ofhuge attorney fee awards.            Now, we are not saying that the AGsof Arkansas, Louisiana, South Carolina, West Virginia, et al., should notfulfill their duties to enforce their respective state laws and protect theirrespective citizens through all available means.  (They could climb mountains and sail acrossstormy seas to do so, if inspired by the cheesy songs of our youth we decriedabove.)  We also are not saying thatmarketing by pharmaceutical companies is always as pure as laboratory snow andcould never produce harm to consumers or medical assistance programs. We justthink that the courts considering such cases better be sure they are on soundlegal footing when they attempt to levy sizable, multiplied fines and to imposeimmense attorney fees that go to private firms. AGs are induced to bring suits by the possibility of such awards or thelarge settlements the threat of them can generate.  It is easy for an outsider, even a DDLblogger, to regard all of this as a giant shake down.  A few good decisions up the appellate chainwould do something to combat such a perception. The shame is that a typical defendant in these cases, whose corporatemission is typically something like improving public health through betterdrugs, does rack up huge fees to get to the second layer of appeals, to saynothing of the bonds it may have to put up. They do need to keep the lights on, unlike the Superdome.